Partly allowed

Fr. Manoj Varghese v. Abraham Abraham

Kerala HC2 Nov 2016CRP/367/2016

Case brief

AI extract

What is this about?

A civil revision petition challenged the Single Judge's order allowing delay condonation and restoration of a suit dismissed for default. The High Court enhanced the imposed costs and remanded the matter for expeditious trial.

What did the court decide?

Costs for delay condonation and restoration of suit are enhanced from Rs. 3,000 to Rs. 5,000. The case is remanded with directions to expeditiously try it within three months.

Fr. Manoj Varghese Vs Abraham Abraham — Property and Title | Kerala HC (2016)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN

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WEDNESDAY, THE 2ND DAY OF NOVEMBER 2016/11TH KARTHIKA, 1938

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CRP.No. 367 of 2016 ()

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(IA.NO.1422/2013 & 1423/2013 IN OS.NO.280/2009 OF SUB COURT, KATTAPPANA)

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REVISION PETITIONER(S)/RESPONDENTS NO.2 TO 4/DEFENDANTS NO.2 TO 4 :

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1. FR. MANOJ VARGHESE, EERACHERIL VEEDU, KANJIKUZHY KARA, KANJIKUZHY VILLAGE.

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2. SOJAN VARGHESE, EERACHERIL VEEDU, KANJIKUZHY KARA, KANJIKUZHY VILLAGE.

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3. ELDHOSE, KEEPPALAKKATTU VEEDU, EZHUKAMBI KARA, KANJIKUZHY P.O., KANJIKUZHY VILLAGE.

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BY ADVS.SRI.SAJAN VARGHEESE K. SRI.LIJU. M.P SMT.LILLU L. KRISHNAN

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RESPONDENT(S)/PETITIONERS & RESPONDENTS NO.1,5 AND 6/PLAINTIFFS & DEFENDANTS NO.1,5 AND 6:

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1. ABRAHAM ABRAHAM, S/O.ABRAHAM, KIZHAKKEKUTTU VEEDU, KEERITHODU KARA AND POST,

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KANJIKUZHY VILLAGE, IDUKKI DISTRICT. PIN-685 584

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2. PAULOSE, S/O.KURIAN, KANJIRAKKATTU VEEDU, CHELACHUVADU KARA AND POST, KANJIKUZHY VILLAGE, IDUKKI DISTRICT. PIN-685 584

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3. CHARLSE, S/O.JACOB, PAYYAPPALLIYIL VEEDU, PANNIYAR KARA,

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KANJIKUZHY VILLAGE, KEERITHODE POST, IDUKKI DISTRICT. PIN-685 584

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4. KURIAN, S/O.KURIAN, KALLUVETTAMKUZHI VEEDU, PAKUTHIPPALAM BHAGAM, KEERITHODU KARA AND POST, KANJIKUZHY VILLAGE, IDUKKI DISTRICT-685 584

2/-

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CRP.NO.367/2016

5. KERALA STATE ELECTRICITY BOARD, REPRESENTED BY THE SECRETARY OF K.S.E.B., VYDHYUTHI BHAVAN, THRIUVANANTHAPURAM-695 001

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6. EXECUTIVE ENGINEER, ELECTRICAL MAJOR SECTION, KERALA STATE ELECTRICITY BOARD, VAZHATHOPPU, IDUKKI DISTRICT. PIN-685 584.

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R1 TO R3 BY SRI.K.JAJU BABU,SENIOR ADVOCATE ADV. SMT.M.U.VIJAYALAKSHMI R4 BY ADV. SRI.SUNIL KUMAR A.G R5 & R6 BY ADV. ADV.SATHYANATHA MENON

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THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 02-11-2016, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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sts

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K. RAMAKRISHNAN, J.

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....................................... C.R.P.No.367 of 2016

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........................................ Dated this the 2^nd day of November, 2016.

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O R D E R

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This revision has been filed by the petitioners challenging the common order passed in IA.Nos.1422/2013 and 1423/2013 in OS.No.280/2009 on the file of the Sub Court, Kattappana under section 115 of the Code of Civil Procedure (hereinafter referred to as 'the Code').

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It is alleged in the petition that respondents 1 to 3 filed OS.No.280/2009 for a declaration that respondents 5 and 6 have got right over the plaint schedule property and for injunction restraining the revision petitioners herein from trespassing into the property and making any construction in the property. The suit was filed under section 91 of the Code. There was no public right involved and the petitioners herein filed a written statement denying the right of the plaintiffs and they have no locus standi to file the suit. They also contended that the property belongs to St. George Jacobite Syrian Church and the attempt of the plaintiffs is only to interfere with the right of the church over the property as there were rival fractions in the same community. The suit was listed for trial on 11.11.2011 and it was dismissed for default as the plaintiffs did not appear. Thereafter respondents 1 to 3 filed IA.No.1422/2013 and IA.No.1423/2013 to restore the suit dismissed for default along with delay

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C.R.P.No.367 of 2016 2

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condonation application of condoning a delay of 700 days in filing the petition. It is alleged in the petition that the first petitioner is suffering from Asthma for long time and he was undergoing treatment for that illness and he did not receive notice regarding the date of posting and only when he returned to his native place after the treatment and when he enquired about the position of the case, he came to understand that the suit was dismissed for default on 11.11.2011. Immediately he filed the above applications. The revision petitioners herein filed objection to those applications denying the allegations and also contended that the delay has not been properly explained. The first petitioner was examined as PW1 and Ext.A1 medical certificate was produced. After considering the evidence, the court below allowed the application by a common order on payment of costs of Rs.3,000/and respondents 1 to 3 deposited the cost and accordingly the applications were allowed. This is being challenged by the petitioners by filing this revision.

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Heard Sri. Sajan Varghese K, learned counsel appearing for the revision petitioners, Sri. Jaju Babu, learned senior counsel appearing for respondents 1 to 3, Sri. P. A. Ahamed, learned standing counsel appearing for respondents 5 and 6 and Sri.Sunil Kumar, learned counsel appearing for the 4^th respondent.

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Learned counsel appearing for the revision petitioners

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C.R.P.No.367 of 2016 3

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submitted that there was no sufficient reason given for condoning the delay of 700 days. The evidence of PW1 is not helpful to prove the case. Further, there are other two plaintiffs who could have entered appearance and conducted the case as well which has not been done in this case. So under the circumstances, the court below was not justified in allowing the applications.

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On the other hand, learned counsel appearing for

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respondents 1 to 3 submitted that the first petitioner was examined as PW1 and he gave evidence and the court below was satisfied with the reasons stated and exercised the discretion in favour of allowing the application which cannot be said to be illegal warranting interference under section 115 of the Code.

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Heard standing counsel appearing for respondents 5 and 6 as well and learned counsel appearing for the 4^th respondent also supported the case of the revision petitioners.

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It is an admitted fact that respondents 1 to 3 herein filed OS.No.280/2009 before the Sub Court, Kattappana for a declaration that defendants 5 and 6, who are respondents 5 and 6 herein, are the owners of the plaint schedule property, which was acquired for the purpose of drawing 66 KV electric line and public roads are also passing nearby and the revision petitioners and the 4^th respondent herein are trying to trespass into that area and construct a shed to make it a prayer hall in that place.

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C.R.P.No.367 of 2016 4

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The suit was filed under section 91 of the Code. The revision petitioners entered appearance and filed a written statement denying the allegations and also questioned the locus standi of the plaintiffs to file the suit. They also contended that the property belongs to St. George Jacobite Syrian Church and it is not a part of the property acquired by the Electricity Board and as such, the suit is not maintainable. It is true that on 11.11.2011 when the case was listed for trial, the plaintiffs did not appear and so the suit was dismissed for default. They filed IA.Nos.1422/2013 and 1423/2013 to restore the suit dismissed for default along with delay condonation application to condone the delay of 700 days in filing the application. It is alleged in the affidavit in support of those applications that the first plaintiff is contesting the case for and on behalf of others and he was suffering from Asthma and he was undergoing treatment for the same since long time in Kasaragod district. He did not receive notice regarding the date of positing and after the treatment when he came to the native place he came to understand that the suit has been dismissed for default, immediately he filed the applications. Respondents 1 to 4, who are the revision petitioners and 4^th respondent respectively filed counter denying the allegations. The first petitioner in the court below was examined as PW1 and Ext.A1 medical certificate was also produced. It is true that the evidence given by PW1 is shaky.

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C.R.P.No.367 of 2016 5

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But that does not mean that the reason stated by him for non appearance on 11.11.2011 was not a sufficient cause for his non appearance. It is seen from Ext.A1 medical certificate produced that he was an Asthma patient. The question is as to whether on the date on which the case was listed, whether there was sufficient cause for him for his non appearance and the delay has been properly explained or not. The evidence of PW1 will got to show that he did not receive any letter regarding the date of posting from his counsel. Only when he came to his native place after the treatment, he came to know about the dismissal of the suit, immediately he filed the suit. It is settled law that the court must be liberal in considering the delay condonation application and application to set aside ex parte decree or restore the suit dismissed for default and parties must be given an opportunity to meet the case on merit as far as possible. Here the case has been filed on a public cause that the revision petitioners are trying to trespass into the property acquired by the Electricity Board for drawing 66 KV electric line and trying to put up permanent structure in the property So under such circumstances, the court below exercised the discretion of allowing the application on payment of costs considering the fact that there was some laches which caused some inconvenience to the other side which will have to be compensated on payment of costs. Considering the number

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C.R.P.No.367 of 2016 6

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of days delay, the amount of Rs.3,000/- imposed by the court below appears to be on the lower side. So this court feels that enhancing the cost payable for the delay in filing the applications will meet the ends of justice. Considering the number of days delay, this court feels that fixing the cost payable to Rs.5,000/- in stead of Rs.3,000/- will be sufficient and that will meet the ends of justice. So the cost payable for condonation of delay and allowing the application on restoring the suit is enhanced to Rs.5,000/- from Rs.3,000/-. Respondents 1 to 3 are directed to deposit this amount also before the court below within one week from today. If the amount is deposited within that time, then the order passed by the court below will stand confirmed. Otherwise the revision petition will be allowed and the order passed by the court below will be set aside and the petition filed by respondents 1 to 3 will be dismissed.

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With the above directions and observations, this revision is disposed of. Registry is directed to communicate a copy of this order to the court below by phone and permit the plaintiffs before the court below to pay the difference amount of Rs.2,000/- as enhanced cost fixed by this court and if the cost is paid permit plaintiffs to proceed with the case. If respondents 5 and 6 did not file any written statement, they are at liberty to file written statement with a petition to receive the same. The respondents

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C.R.P.No.367 of 2016

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are also permitted to file any application for impleading or amendment, if necessary on the basis of the pleadings and if such applications are filed the court below is directed to consider and pass appropriate orders in those applications and try to expedite the suit as expeditiously as possible at any rate within three months from the date of receipt of a copy of this judgment.

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Sd/-

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K. RAMAKRISHNAN, JUDGE.

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Fr. Manoj Varghese v. Abraham Abraham

Case brief

What is this about?

What did the court decide?

Fr. Manoj Varghese v. Abraham Abraham

Case brief

What is this about?

What did the court decide?

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